PHOENIX — A Maricopa County judge has removed from the November ballot a proposed constitutional amendment that would invalidate a voter initiative to reform Arizona’s school voucher program.
Maricopa County Superior Judge Joseph Kreamer ruled Wednesday that House Concurrent Resolution 2048 — known as Proposition 145 — was unconstitutional and ordered the secretary of state to take it off the ballot.
Prop. 145 would prohibit the state from confiscating scholarship funds – including Empowerment Scholarship Account money – from the children of military families. The proposed constitutional amendment would also invalidate, in their entirety, any voter-approved measure or legislative effort that includes a provision allowing the state to take back money from military children.
It would apply to Proposition 212, also known as the Protect Education Act, an ESA reform initiative that would ask voters to add income caps and student testing to the program and allow the state to recoup unspent funds.
The group behind the Prop. 212 said they are overjoyed by the judge's ruling.
"Every once in a while, you get a little good news, and you feel affirmed that the system is working the way that it's supposed to," said Olivia Fierro, a spokesperson for Protect Education, Accountability Now.
The group filed the challenge to the military families measure, saying it was unconstitutional.
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Kreamer ruled that the inclusion of the section barring lawmakers from enacting legislation allowing the state to take scholarship funds and constraining citizen initiatives violates the state’s Separate Amendment rule, which requires proposed amendments to the Arizona Constitution to be proposed separately.
The two provisions concern multiple sections of the Constitution, he said, adding that they "operate differently in scope, effect and practical purpose.”
But the legal battle over the measure is not over.
A spokesman for House Speaker Steve Montenegro told ABC15: “The Speaker believes the court got it wrong, and he will appeal.”
The Goldwater Institute, which drafted the legislation, said it also plans to appeal.
“Arizona law strongly supports the position that this is a single amendment to the Constitution, and Arizonans should be given the opportunity to vote on these important protections for our military families,” Jon Riches, the institute's vice president for litigation, said in a statement.
Fierro said the Protect Education group is confident they will prevail in court.
"The Arizona Constitution is not going to change as this appeal moves forward, so the law is the law," she said. "They can try again, and they can hope that they'll get a judge that doesn't want to interpret the law."
Prop. 212, the ESA reform measure, faces legal challenges of its own. A lawsuit is challenging some of the signatures, but Fierro said her group is confident their initiative will stay on the ballot.
The Legislature passed House Concurrent Resolution 2048, the legislation that became Prop. 145, in the final hours of the legislative session after a deal for some ESA reforms between the Arizona Education Association and House Republicans failed.
"It was beyond sneaky," Fierro said. "It was really one of those political moves that made people so suspicious of politicians."
HCR 2048 passed on a party-line vote, with supporters saying the measure protected promises the state has made to military families.
“This amendment would strike down every provision of any measure that treats military families as acceptable collateral damage,” state Rep. Michael Way, the bill sponsor, said on the House floor when lawmakers voted on the legislation.
While Prop. 145 remains in court, voters will not see another education-related ballot measure lawmakers passed at the end of the session after the failure of the ESA deal.
In a separate case, another judge ruled that House Concurrent Resolution 2040, a measure to restrict union organizing, also violated the Separate Amendment rule.
The Republican leaders of the Legislature are not planning to appeal the removal of HCR 2040.
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